Labor: In discrimination, protections increase but advice stays the same

Discrimination claims are a growth industry. In this sense: We are in the midst of three trends of varying significance that protects additional employees from job decisions made on the basis of their membership in a particular class of works. Increasingly employees are protected on the basis of their sexual orientation or identity, their off-duty conduct, and their having invoked their rights under an employment statute (i.e. retaliation claims). Each of these trends is discussed briefly below.

And of course we are in the midst of a much longer term trend. The landmark discrimination statute is Title VII of the Civil Rights Act of 1964, the federal law prohibiting employment discrimination on the basis of, among other things, gender, race, religion, and national origin. Congress passed the Age Discrimination in Employment Act in 1967, the Americans with Disabilities Act in 1990, and enhanced protections under Title VII in the Civil Rights Act of 1991. States have passed companion statutes that are generally similar in substance, but may provide additional remedies. In Ohio, for example, there is individual liability for supervisors under the state civil rights law even though there is not under Title VII in the 6th Circuit.

Not surprisingly, then, employers are often heard to complain about increasing restrictions on their ability to conduct business as they see fit. It is undeniable that employers do face increasing restrictions and regulation, and the purpose of this article is not to advocate either side of the debate of whether that is a good thing. The point I wish to make here is this: Though the protections for employees have only increased in the past six decades since the passage of Title VII, the preventive advice has not changed.

Of the three recent trends noted above, retaliation is by far the most sweeping and advanced. In effect, retaliation consists of adverse action against the class of employees who have exercised their rights under one or another law or statute. The statutory provisions being invoked in retaliation cases are not new, but for no obvious economic or legal reason they have been invoked on a steadily increasing basis is the past 15 years or so.

Second, more than half of U.S. states have some form of off-duty conduct statute. Some of these simply protect smokers. Others have more general protections against adverse action based on lawful off-duty conduct. (Some of those may be “stealth” smoker protection laws.) These statutes have thus far been by far less frequently invoked than retaliation laws. Most have been passed in the past decade or so.

Finally, it seems that we are in the midst of a sea change in how sexual orientation and gender identity is treated by the legal system. Certainly the broader off-duty conduct statutes in some states would protect workers from job actions based on their sexual orientation. Three states—Maine, Maryland, and Washington—voted to allow gay marriage. Another (Minnesota) defeated a ballot measure to prohibit it. In 2011, four states passed laws prohibiting employment discrimination based on gender identity or expression. Certainly this process is not “done,” but it seems that attitudes are changing and that more and more jurisdictions will prohibit discrimination on the basis of sexual orientation or gender identity.

In short, more and more Americans are part of some class protected by a discrimination law. In that sense, employers should expect more and more of their termination and other adverse employment decisions to be scrutinized by plaintiffs’ lawyers, judges, juries and administrative agencies. There are very few remaining free passes where an employer can fire you because “they don’t like your tie.”

Inside counsel may be asked by their clients, particularly in companies with locations in multiple states where the laws invariably will not be the same from state to state with respect to developing legal issues such as off-duty conduct and sexual orientation discrimination: In the face of all of these developments, how am I even supposed to keep track of which laws apply in which states?

The answer is easier than you might think: You don’t have to. In effect, the defense to any discrimination claim is that the job decision was job-related and not because of unlawful reason that has been alleged. If your clients’ job decisions are job-related and they have documented the facts necessary to demonstrate that in all situations, then your risk of discrimination claims on any basis is greatly reduced.

I am always reminded in this discussion of a particular client that is highly mission focused. Company management truly does not care what an employee’s race color, or creed so long as that employee is producing, distributing or selling that company’s product. Not surprisingly, because that company is so mission focused, it is very successful in its business. But it also has remarkably few employment discrimination claims, and I submit that fact is not unrelated to its market success. That’s right—on balance, the best businesspeople have fewer claims because they are mission focused. Decisions they cannot support in court cost them money.

That has always been true, and the best advice for defending discrimination claims has always been to train both employees and supervisors on performing their job, make expectations of employees clear, be proactive in dealing with employee issues, and be able to document that you have done all of those things. As we add more and more layers of potential claims for aggrieved employees, that advice—subject of course to certain wrinkles based on particular laws, regulations, and decisions—does not change. But the importance of doing so becomes ever more important.